Tuesday, May 8, 2018

A Note On A Note By Jonathan Turley On Judge Ellis On Mueller And Manafort And Cohen



My critique of this column:

....A few thoughts on this column:

You conflate what goes on in oral argument with what a judge is really thinking or stating as law. In the colloquy between lawyer and judge, the judge is at liberty in a Socratic way to put lawyers’ feet to the fire of their positions by raising all kinds of issues, questions, surmises, and hypotheticals. It’s for counsel respectfully to stand up to a judge who has gone over the line.

Besides how far afield did Ellis go in his characterizing Mueller’s motives? The motion here asserting  no jurisdiction explicitly or patently implicitly is accusing the Special Counsel of bad faith in the exercise of prosecutorial discretion. Given that, how far flung is the judge’s speculative ascription of Mueller’s motivation, however thin Manafort’s argument on that score may be?  Ellis is simply doing what many engaged judges in oral argument do: putting in the baldest terms the other side’s case to arguing counsel.

Finally, don’t you at the end of your column come round to what Ellis was getting at, bad motivation—political motivation, shake down motivation, other unlovely motivation—in the disparate approaches to Manafort and Cohen? If so, I see you undercutting the criticism of Ellis’s concern with prosecutorial motivation with which you begin your column.

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